[1] The institutional purport of the relocation measures for public loss and losses

[2] In a case where a housing site is developed and supplied individually in the resettlement area as a countermeasure for public loss and compensation of losses, whether the cost of installing public facilities, etc. in the resettlement area may be borne by migrants under the agreement of the parties (negative)

[3] The meaning of the principle of trust and good faith and the requirements to deny the exercise of rights on grounds of violation

[4] The case holding that it cannot be deemed that the principle of good faith or the principle of opposite speech that a person who took a juristic act in violation of the Enforcement Decree of the Act on the Measures for Relocation of Public Loss and Compensation for Loss, asserts that the person who took part in the juristic act would be invalid

[1] Article 8 (1) of the Special Act on the Compensation for Public Loss and Compensation for Losses provides that "the project implementer shall take measures for resettlement of residents who are deprived of their base of livelihood due to the provision of land, etc. necessary for the implementation of the public project, as prescribed by the Presidential Decree." The measures for resettlement of residents under the Special Act on the Special Cases concerning the Compensation for Public Loss and Compensation for Loss and Compensation for Loss and Compensation for Losses" are individually provided with "the housing site including the basic living facilities" by the project implementer for the migrants who are deprived of their base of livelihood due to the provision of land, etc. necessary for the implementation of the public project, or the construction of housing on that ground and only the cost of the input shall be borne by the migrants." The original purpose of the special Act is to restore the previous living conditions to the original state for

[2] Article 5 (1) of the Enforcement Decree of the Special Act on the Compensation of Public Loss provides that "the details of the relocation measures established pursuant to Article 8 (1) of the Special Act on the Compensation of Public Loss shall include basic living facilities according to the relevant local conditions such as roads, water supply facilities, drainage facilities, and other public facilities." Article 5 (4) of the Special Act on the Compensation of Public Loss provides that "the expenses necessary to implement the relocation measures under paragraph (1) shall be borne by the concessionaire: Provided, That if the concessionaire who is not an administrative agency takes the relocation measures, local governments may partially subsidize the expenses." In light of the institutional purport of the relocation measures under the Special Act on the Compensation of Public Loss, Article 5 (1) and (4) of the Enforcement Decree of the Special Act on the Compensation of Public Loss and Compensation of Residents provide individual supply by creating the housing site in the resettlement area as the relocation measures for the migrants, it shall be installed with basic living facilities according to the relevant local conditions such as roads, water supply and drainage facilities, and installation expenses of public facilities shall not be transferred to migrants.

[3] The principle of trust and good faith is abstract norm that a party to a legal relationship shall not exercise his right or perform his duty in a way that is contrary to the principle of trust and good faith, taking into account the other party's interest, and is not in violation of the principle of trust and good faith. In order to deny the exercise of such right on the ground that it violates the principle of trust and good faith, the other party has provided good faith to the other party, or the other party has good faith from an objective point of view, and the exercise of the right against the other party's trust should be in a situation that is not acceptable in light of the concept of justice. In addition, barring special circumstances, even if the person who performed the legal act knowing that it is null and void due to its violation of the law, it shall not be deemed that it is against the principle

[4] The case holding that it cannot be deemed that the principle of good faith or the principle of opposite speech that the migrant who did a legal act in violation of the Enforcement Decree of the Act on the Costs of Relocation Measures for Public Loss and Compensation for Loss should not be asserted invalid on the ground of its violation of the mandatory law

[1] Article 8 of the Act on the Compensation for Public Loss and Compensation for Public Loss, Article 5 of the Enforcement Decree of the Act on the Compensation for Public Loss / [2] Article 8 of the Act on the Compensation for Public Loss, Article 5 (1) and (4) of the Enforcement Decree of the Act on the Compensation for Public Loss / [3] Article 2 of the Civil Act / [4]

[1] Supreme Court en banc Decision 92Da35783 delivered on May 24, 1994 (Gong1994Ha, 1779) / [3] Supreme Court Decision 99Da4405 delivered on March 23, 199 (Gong199Sang, 752) Supreme Court Decision 9Da53490 delivered on May 15, 2001 (Gong2001Ha, 1370)

Plaintiff (Appointed Party) (Attorney Kim Jong-sik, Counsel for the plaintiff-appellant)

Korea

Seoul High Court Decision 2001Na8594 delivered on September 12, 2001

The appeal is dismissed. The costs of appeal are assessed against the defendant.

We examine the grounds of appeal.

1. On the first ground for appeal

Article 8 (1) of the Public Special Act on the Compensation for Public Loss (hereinafter referred to as the "Special Act") provides that "the project implementer shall take measures for relocation as prescribed by the Presidential Decree for those who will lose their base of livelihood due to the provision of land, etc. necessary for the implementation of the public project (hereinafter referred to as "residents")." The measures for relocation under the Special Act on the Public Special Act provide land, etc. necessary for the implementation of the public project so that the project implementer may lose their base of livelihood due to the provision of land, etc. for the relocation of the residents, and individually provides the migrants with the cost of using "the site including the basic living facilities" or "the cost of the input" under the burden of only the cost of the relocation. The original purpose of the plan is to restore migrantss to their original living condition while at the same time guaranteeing their human dignity (see Supreme Court en banc Decision 92Da35783, May 24, 1994).

However, Article 5 (1) of the Enforcement Decree of the Public Special Act provides that "the details of the relocation measures established under Article 8 (1) of the Act shall include basic living facilities according to the local conditions such as roads, water supply and drainage facilities, and other public facilities in the resettlement area." Paragraph (4) of the same Article provides that "the expenses necessary for the implementation of the relocation measures under paragraph (1) shall be borne by the project operator: Provided, That if a project operator who is not an administrative agency takes relocation measures, a local government may partially subsidize the expenses." In light of the above institutional purport of the relocation measures, Article 5 (1) and (4) of the Enforcement Decree of the Public Special Act of the Special Act provides that if a project operator creates a housing site in the resettlement area as a relocation measures for migrants and supplies it individually, it shall be installed with basic living facilities according to the local conditions such as roads, water supply and drainage facilities, and other public facilities, etc. In addition, the cost of installation of the public facilities shall be borne by the project operator, and it shall be excluded from the application of the provisions.

Therefore, the judgment of the court below that the part of the sales contract of this case which included the costs of public facilities in the sale price is null and void as a juristic act violating the above mandatory provisions, is just, and it is not erroneous in the misapprehension of legal principles as to the cost of relocation measures under the special public law, as alleged in the ground of appeal.

2. On the second ground for appeal

The court below held that even if the plaintiff and the non-party et al. did not reside in the urban planning facility (airport) decision zone publicly notified at the beginning, the Minister of Construction and Transportation and the head of Gangseo-gu Seoul Metropolitan Government were included in the relocation object through the second and third agreements, and accordingly, when the Minister of Construction and Transportation and the head of Gangseo-gu Office entrusted with the main business by the head of the Seoul Metropolitan Government, notified the area where the plaintiff and the non-party et al. resided as the relocation object and concluded each sales contract of this case by recognizing the plaintiff and the non-party et al. as the relocation object by the resident's implementation of the main business, the court below held that the above decision of the court below is just, and there is no error of law by misapprehending the legal principles on the migrants under the Public Special Law, or by misapprehending the facts.

The judgment of the Defendant, contrary to this case, cannot serve as an appropriate precedent to rely on this case, on a different matter.

3. On the third ground for appeal

The principle of trust and good faith is an abstract norm that takes into account the other party's interest and should not exercise rights or perform obligations in a way that is contrary to the principle of trust and good faith. In order to deny the exercise of such rights on the ground that it violates the principle of trust and good faith, there must be a good faith provided to the other party, or the other party should be objectively regarded as being in a legitimate state, and the exercise of rights against the other party's trust should not be acceptable in light of the concept of justice. In addition, barring any special circumstance, even though the person who performed the legal act knowing that it is null and void due to a violation of the law and thus, it cannot be deemed as a violation of the principle of trust and good faith or the principle of gold, or an abuse of rights (see, e.g., Supreme Court Decisions 9Da4405, Mar. 23, 199; 9Da53490, May 15, 201). Thus, the court below's determination is justifiable in its misapprehension of legal principles and the principle of trust and good faith.

4. Conclusion

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jin-hun (Presiding Justice)